to state governments. Not only was he democratically elected, he was the only person so elected by the entire country. Even before the advent of democracy presidents had discovered the power of executive orders, and Jefferson had found that his republican principles did not require him to leave the Louisiana Purchase on the table.164 Thereafter, in times of crisis, a Lincoln or Franklin Delano Roosevelt might emerge to defend or lead a unified county. With a legitimacy derived from both the Constitution and the democratic process, the president became the spokesman for the welfare of the nation as a whole. He might thus oppose the will of Congress, and in doing so strengthen the separation of powers.
Nevertheless, it is historically inaccurate to view the Constitution through a separationist prism. The delegates had sharply disagreed on the division of powers between the federal and state governments, and what they devised was a compromise between the highly decentralized Articles of Confederation and the Virginia Plan’s strong nationalism. They arrived at a method of choosing senators not to promote an abstract principle of separation of powers within the central government, but to give states a measure of control over the central government. As for the executive, states’-rights supporters were given a president selected by a method chosen by the states, and (or so they thought) the ultimate choice would be made by state delegations in the House of Representatives, with one vote per state. To adhere to the Framers’ understanding of the Constitution, the doctrine of separation of powers should thus be demoted from its position as a foundational principle of constitutional interpretation.
No great historic problem has ever been settled by means of a brilliant idea.
—SIR LEWIS NAMIER
In their debates, the Framers of the American Constitution looked to other models they might follow. A few spoke self-consciously of ancient Greece’s Amphictyonic Council, the Hellenistic Achaean League, Charlemagne’s Empire. That was largely window dressing, though, an ostentatious display of scholarship. Only one model seriously commanded their attention: that of Britain. Their debates were an extended commentary on the British constitution—which they admired, but which they rejected as unsuited for America.
To what did they object, when they looked to the government of Westminster? We wouldn’t think it a democracy. The franchise was severely limited, large cities went unrepresented in Parliament, many members of Parliament were appointed by a local aristocrat, and George III exercised a very strong influence over the government. But the absence of democracy wouldn’t have bothered very many of the delegates, and Britain wasn’t entirely undemocratic either. From the fourteenth century onward, a Dick (“Turn again”) Whittington could travel to London to seek his fortune, and there was a remarkable degree of mobility between the social classes.1 A Norfolk parson’s son might rise to command the Royal Navy and ascend to the peerage as Lord Nelson; a coal merchant’s son might become the arch-Tory Lord Chancellor, Lord Eldon. Through trade, a person might climb the social ladder with a freedom unknown in most of the rest of Europe. “England knows not democracy as a doctrine,” observed Lewis Namier, “but has always practiced it as a fine art.”2
Britain was the freest country in the world at the time of the American Revolution. Though he might dominate the government, George III ruled as a constitutional monarch, and knew that he governed through Parliament, even if the colonists might have forgotten it. Before the Revolution some Americans had argued that, in their quest for self-government, they might bypass Parliament entirely. “The British Empire is not a single state,” wrote Benjamin Franklin. “It comprehends many . . . We have the same King but not the same legislatures.”3 The government of an American province, thought Franklin, was constituted by George III and the local House of Assembly, and only it—not Parliament at Westminster—had the power to levy taxes.
What Franklin objected to was the doctrine of parliamentary sovereignty, under which the “King-in-Parliament”—King, House of Lords, and House of Commons—has supreme legal authority. Statutes passed by both houses of Parliament and to which the King assents are “absolute and without control,” as William Blackstone wrote in 1765, the same year in which the Stamp Act was passed.4 There was nothing new in this. Parliamentary sovereignty had been a well-established constitutional principle at least as far back as the Glorious Revolution of 1688; and earlier constitutional doctrines, in which a Charles I might rule without relying on Parliament, or in which the common law as interpreted by the courts trumped Parliament, were left behind by the 1689 Revolution Settlement. Nor was there anything novel in Parliament’s assertion of authority over America. As far back as 1696, Parliament had declared that colonial laws were invalid if inconsistent with Acts of Parliament.5 Britons had come to see Parliament as the safeguard of their liberties, and found the American appeal to royal government a puzzling throwback to the earlier, illiberal regime of Charles I. Before long, Americans, too, abandoned the idea of a direct connection to the King with a Declaration of Independence that labeled George III a tyrant.
George III exercised a powerful influence over the government’s policies. He had a broad right to select whomever he wanted to serve as prime minister, and through a system of patronage controlled the votes of many members of Parliament. He was not, however, the tyrant the Patriots took him to be. Ironically, he might have been one had he tried to rule over America directly, as Franklin proposed. The prime minister, Lord North, recognized this in answering charges by the Whig leader, Charles James Fox, that North’s ministry was Tory. “The aim of toryism was to increase the [King’s] prerogative,” said North. “That in the present case, the administration contended for the right of Parliament, while the Americans talked of their belonging to the Crown.”6 But while George III adhered to the 1689 settlement, he also dominated the government, and was the most steadfast opponent of American independence. He remained so even after his ministers recognized that the cause was lost, and this precipitated a British constitutional crisis that put an end to the personal control he had exercised over Parliament. Both in America and in Britain, the American Revolution hastened the growth of democratic government.
THE ORDEAL OF LORD NORTH
Lord North was the prime minister of England from 1770 to 1782, with a period of continued leadership unmatched by all save two prime ministers since then. There was a reason for this. He was an amiable and effective leader who disarmed his opponents with his wit and good humor. No man was less given to enmity, or better able to bury a quarrel with a jest. Years later he told an old antagonist that, notwithstanding their differences in Parliament, “there are not two men in the kingdom who would now be more happy to see each other.” Both were blind at the time, and led about by attendants.7
If we remember North today, however, it is as the blunderer who lost America during the Revolution. “Lord Chatham, the king of Prussia, nay, Alexander the Great, never gained more in one campaign than the noble Lord has lost,” thundered Whig statesman Fox. “He has lost a whole continent.”8 That was a judgment North sought desperately to avoid; he knew early on that the Revolution was not going Britain’s way, and frequently asked George III to let him resign. In 1779 he described his agony to the King:
I have been miserable for ten years in obedience to Your Majesty’s commands . . . I must look upon it as a degree of guilt to continue in office, while the Publick suffers.” 9
The King refused North’s pleas and North remained in office, faithful to the constitutional principle that a King was entitled to choose his ministers. The seals of office may have been in North’s hands, but it was the King who supervised the conduct of the war, and North reported to him as an employee to his superior. However,
