Anglicizing the United States constitution: James Bryce's contribution to Australian federalism

Publius: The Journal of Federalism

Volumn 31, Issue 4, 2001, Pages 107-129

  Wright, John S F ^a  

^a NONE

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EID: 0039299843     PISSN: 00485950     EISSN: None     Source Type: Journal    
DOI: 10.1093/oxfordjournals.pubjof.a004913     Document Type: Article

References (69)

1. James Bryce, The American Commonwealth, vol. 1 (New York: Macmillan, 1888), pp. 4-5.
2. Ibid., p. 5.
3. Ibid.
4. Ibid., p. 6.
5. Woodrow Wilson, "Bryce's American Commonwealth," Political Science Quarterly 4 (March 1889): 153.
6. Ibid., 155.
7. Lord Acton, "The American Commonwealth," The History of Freedom and Other Essays (New York: Books for Libraries Press, 1907), pp. 575-576.
8. Wilson, "Bryce's American Commonwealth," 164.
9. Bryce, The American Commonwealth, vol. 1, p. 136.
10. Historians of the founding maintain that whereas men like Thomas Jefferson emphasized the republican values of virtue, rights, the public good, and hostility to corruption and absolutism, other founders transformed these concepts, claiming that political institutions should also reflect the principle that human beings are more likely to act in their own self-interest than in the public good. James Madison and John Adams, for example, believed that the inadequacies of the state constitutions were rooted in their failure to accommodate man's self-interested nature. Forrest MacDonald argues that Madison occupied a position "somewhere between those of the courtparty nationalists and the republican ideologues." See Forrest McDonald, Novos Ordo Scelorum: The Intellectual Origins of the Constitution (Kansas: University of Kansas Press, 1985), p. 203. Gordon Wood agrees that although empirical political thought influenced the federal Constitution, the American founders did not cynically abandon the republicanism of the revolutionary period. Wood believes that by 1787, the distinction between republicanism and empiricism was no longer clear. "The Constitution presented no simple choice between accepting or rejecting the principles of 1776." In the years between the Revolution and the Philadelphia Convention, republican assumptions about the nature of man and society were "extended, molded and perverted." In both words and political institutions, the principles of 1776 took on new meanings. Wood argues that by 1787, it became possible for Federalists to consider themselves as the genuine defenders of the old republican liberty. The Federalists sincerely believed that the 1789 Constitution was thoroughly republican and democratic. "So many piecemeal changes in thought had occurred in the decade since independence that, without anyone's being fully aware of what was happening, the whole intellectual world of 1776 had become unravelled." For Wood, the Federalists wove these strands into "a new intellectual framework" in the Constitution of 1789. As a result, the Antifederalists could never "offer any effective intellectual opposition to the Constitution because the weapons they chose were mostly in their opponents' hands." See Gordon S. Wood, The Creation of the American Republic (Williamsburg: Institute of Early American History and Culture, 1969), pp. 523-524. Scholars have also established that in preparing for the Philadelphia Convention of 1787, Madison adopted and modified David Hume's scheme for a federal republic on the basis of an empirical interpretation of human nature. See Douglas Adair, "That Politics May be Reduced to a Science: David Hume, James Madison and the Tenth Federalist," Huntington Library Quarterly 20 (February 1957): 343-360. American historians generally agree, however, that the federal component of the 1789 Constitution does not represent a shift from republican to empirical political models. The Federalists rejected both the continuance of the old confederacy and any return to a system mixed of monarchy because they were able to reconcile empirical and republican political thought. In the main, the Federalists recognized that only a large republic could deliver the republican values that it was more widely thought unable to provide. See MacDonald, Novos Ordo Scelorum, p. 203.
11. Historians of the founding maintain that whereas men like Thomas Jefferson emphasized the republican values of virtue, rights, the public good, and hostility to corruption and absolutism, other founders transformed these concepts, claiming that political institutions should also reflect the principle that human beings are more likely to act in their own self-interest than in the public good. James Madison and John Adams, for example, believed that the inadequacies of the state constitutions were rooted in their failure to accommodate man's self-interested nature. Forrest MacDonald argues that Madison occupied a position "somewhere between those of the courtparty nationalists and the republican ideologues." See Forrest McDonald, Novos Ordo Scelorum: The Intellectual Origins of the Constitution (Kansas: University of Kansas Press, 1985), p. 203. Gordon Wood agrees that although empirical political thought influenced the federal Constitution, the American founders did not cynically abandon the republicanism of the revolutionary period. Wood believes that by 1787, the distinction between republicanism and empiricism was no longer clear. "The Constitution presented no simple choice between accepting or rejecting the principles of 1776." In the years between the Revolution and the Philadelphia Convention, republican assumptions about the nature of man and society were "extended, molded and perverted." In both words and political institutions, the principles of 1776 took on new meanings. Wood argues that by 1787, it became possible for Federalists to consider themselves as the genuine defenders of the old republican liberty. The Federalists sincerely believed that the 1789 Constitution was thoroughly republican and democratic. "So many piecemeal changes in thought had occurred in the decade since independence that, without anyone's being fully aware of what was happening, the whole intellectual world of 1776 had become unravelled." For Wood, the Federalists wove these strands into "a new intellectual framework" in the Constitution of 1789. As a result, the Antifederalists could never "offer any effective intellectual opposition to the Constitution because the weapons they chose were mostly in their opponents' hands." See Gordon S. Wood, The Creation of the American Republic (Williamsburg: Institute of Early American History and Culture, 1969), pp. 523-524. Scholars have also established that in preparing for the Philadelphia Convention of 1787, Madison adopted and modified David Hume's scheme for a federal republic on the basis of an empirical interpretation of human nature. See Douglas Adair, "That Politics May be Reduced to a Science: David Hume, James Madison and the Tenth Federalist," Huntington Library Quarterly 20 (February 1957): 343-360. American historians generally agree, however, that the federal component of the 1789 Constitution does not represent a shift from republican to empirical political models. The Federalists rejected both the continuance of the old confederacy and any return to a system mixed of monarchy because they were able to reconcile empirical and republican political thought. In the main, the Federalists recognized that only a large republic could deliver the republican values that it was more widely thought unable to provide. See MacDonald, Novos Ordo Scelorum, p. 203.
12. Historians of the founding maintain that whereas men like Thomas Jefferson emphasized the republican values of virtue, rights, the public good, and hostility to corruption and absolutism, other founders transformed these concepts, claiming that political institutions should also reflect the principle that human beings are more likely to act in their own self-interest than in the public good. James Madison and John Adams, for example, believed that the inadequacies of the state constitutions were rooted in their failure to accommodate man's self-interested nature. Forrest MacDonald argues that Madison occupied a position "somewhere between those of the courtparty nationalists and the republican ideologues." See Forrest McDonald, Novos Ordo Scelorum: The Intellectual Origins of the Constitution (Kansas: University of Kansas Press, 1985), p. 203. Gordon Wood agrees that although empirical political thought influenced the federal Constitution, the American founders did not cynically abandon the republicanism of the revolutionary period. Wood believes that by 1787, the distinction between republicanism and empiricism was no longer clear. "The Constitution presented no simple choice between accepting or rejecting the principles of 1776." In the years between the Revolution and the Philadelphia Convention, republican assumptions about the nature of man and society were "extended, molded and perverted." In both words and political institutions, the principles of 1776 took on new meanings. Wood argues that by 1787, it became possible for Federalists to consider themselves as the genuine defenders of the old republican liberty. The Federalists sincerely believed that the 1789 Constitution was thoroughly republican and democratic. "So many piecemeal changes in thought had occurred in the decade since independence that, without anyone's being fully aware of what was happening, the whole intellectual world of 1776 had become unravelled." For Wood, the Federalists wove these strands into "a new intellectual framework" in the Constitution of 1789. As a result, the Antifederalists could never "offer any effective intellectual opposition to the Constitution because the weapons they chose were mostly in their opponents' hands." See Gordon S. Wood, The Creation of the American Republic (Williamsburg: Institute of Early American History and Culture, 1969), pp. 523-524. Scholars have also established that in preparing for the Philadelphia Convention of 1787, Madison adopted and modified David Hume's scheme for a federal republic on the basis of an empirical interpretation of human nature. See Douglas Adair, "That Politics May be Reduced to a Science: David Hume, James Madison and the Tenth Federalist," Huntington Library Quarterly 20 (February 1957): 343-360. American historians generally agree, however, that the federal component of the 1789 Constitution does not represent a shift from republican to empirical political models. The Federalists rejected both the continuance of the old confederacy and any return to a system mixed of monarchy because they were able to reconcile empirical and republican political thought. In the main, the Federalists recognized that only a large republic could deliver the republican values that it was more widely thought unable to provide. See MacDonald, Novos Ordo Scelorum, p. 203.
13. Historians of the founding maintain that whereas men like Thomas Jefferson emphasized the republican values of virtue, rights, the public good, and hostility to corruption and absolutism, other founders transformed these concepts, claiming that political institutions should also reflect the principle that human beings are more likely to act in their own self-interest than in the public good. James Madison and John Adams, for example, believed that the inadequacies of the state constitutions were rooted in their failure to accommodate man's self-interested nature. Forrest MacDonald argues that Madison occupied a position "somewhere between those of the courtparty nationalists and the republican ideologues." See Forrest McDonald, Novos Ordo Scelorum: The Intellectual Origins of the Constitution (Kansas: University of Kansas Press, 1985), p. 203. Gordon Wood agrees that although empirical political thought influenced the federal Constitution, the American founders did not cynically abandon the republicanism of the revolutionary period. Wood believes that by 1787, the distinction between republicanism and empiricism was no longer clear. "The Constitution presented no simple choice between accepting or rejecting the principles of 1776." In the years between the Revolution and the Philadelphia Convention, republican assumptions about the nature of man and society were "extended, molded and perverted." In both words and political institutions, the principles of 1776 took on new meanings. Wood argues that by 1787, it became possible for Federalists to consider themselves as the genuine defenders of the old republican liberty. The Federalists sincerely believed that the 1789 Constitution was thoroughly republican and democratic. "So many piecemeal changes in thought had occurred in the decade since independence that, without anyone's being fully aware of what was happening, the whole intellectual world of 1776 had become unravelled." For Wood, the Federalists wove these strands into "a new intellectual framework" in the Constitution of 1789. As a result, the Antifederalists could never "offer any effective intellectual opposition to the Constitution because the weapons they chose were mostly in their opponents' hands." See Gordon S. Wood, The Creation of the American Republic (Williamsburg: Institute of Early American History and Culture, 1969), pp. 523-524. Scholars have also established that in preparing for the Philadelphia Convention of 1787, Madison adopted and modified David Hume's scheme for a federal republic on the basis of an empirical interpretation of human nature. See Douglas Adair, "That Politics May be Reduced to a Science: David Hume, James Madison and the Tenth Federalist," Huntington Library Quarterly 20 (February 1957): 343-360. American historians generally agree, however, that the federal component of the 1789 Constitution does not represent a shift from republican to empirical political models. The Federalists rejected both the continuance of the old confederacy and any return to a system mixed of monarchy because they were able to reconcile empirical and republican political thought. In the main, the Federalists recognized that only a large republic could deliver the republican values that it was more widely thought unable to provide. See MacDonald, Novos Ordo Scelorum, p. 203.
14. As a professor of law and an expert on Roman jurisprudence, Bryce was undoubtedly aware of the ideological development of the U.S. Constitution. Hejust wasn't interested. What he considered important was "its framework and constitutional machinery, the methods by which it is worked, the forces which move it and direct its course." See Bryce, The American Commonwealth, vol. 1, p. 7, Bryce also described the U.S. Supreme Court relative to the British Constitution, arguing that as American justices held office during good behavior, they "have thus a tenure more secure than that of English judges, for the latter may be removed by the Crown on an address from both Houses of Parliament." See Bryce, The American Commonwealth, vol. 1, pp. 306-308. Similarly, he argued that the power of the Supreme Court to interpret the Constitution resembled the function of the British courts. "In England, for instance, if a secretary of state, or a police constable, does any act which the citizen affected by it rightly deems unwarranted, the citizen may resist... relying on the courts of the land to sustain him." Accordingly, Bryce concluded that the American device of judicial review was a "consequence of the English doctrine that all executive power is strictly limited by the law." See Bryce, The American Commonwealth, vol. 1, p. 327.
15. As a professor of law and an expert on Roman jurisprudence, Bryce was undoubtedly aware of the ideological development of the U.S. Constitution. Hejust wasn't interested. What he considered important was "its framework and constitutional machinery, the methods by which it is worked, the forces which move it and direct its course." See Bryce, The American Commonwealth, vol. 1, p. 7, Bryce also described the U.S. Supreme Court relative to the British Constitution, arguing that as American justices held office during good behavior, they "have thus a tenure more secure than that of English judges, for the latter may be removed by the Crown on an address from both Houses of Parliament." See Bryce, The American Commonwealth, vol. 1, pp. 306-308. Similarly, he argued that the power of the Supreme Court to interpret the Constitution resembled the function of the British courts. "In England, for instance, if a secretary of state, or a police constable, does any act which the citizen affected by it rightly deems unwarranted, the citizen may resist... relying on the courts of the land to sustain him." Accordingly, Bryce concluded that the American device of judicial review was a "consequence of the English doctrine that all executive power is strictly limited by the law." See Bryce, The American Commonwealth, vol. 1, p. 327.
16. As a professor of law and an expert on Roman jurisprudence, Bryce was undoubtedly aware of the ideological development of the U.S. Constitution. Hejust wasn't interested. What he considered important was "its framework and constitutional machinery, the methods by which it is worked, the forces which move it and direct its course." See Bryce, The American Commonwealth, vol. 1, p. 7, Bryce also described the U.S. Supreme Court relative to the British Constitution, arguing that as American justices held office during good behavior, they "have thus a tenure more secure than that of English judges, for the latter may be removed by the Crown on an address from both Houses of Parliament." See Bryce, The American Commonwealth, vol. 1, pp. 306-308. Similarly, he argued that the power of the Supreme Court to interpret the Constitution resembled the function of the British courts. "In England, for instance, if a secretary of state, or a police constable, does any act which the citizen affected by it rightly deems unwarranted, the citizen may resist... relying on the courts of the land to sustain him." Accordingly, Bryce concluded that the American device of judicial review was a "consequence of the English doctrine that all executive power is strictly limited by the law." See Bryce, The American Commonwealth, vol. 1, p. 327.
17. Hugh Tulloch, James Bryce's the American Commonwealth (Suffolk: The Boydell Press, 1988), p. 61.
18. Ibid., pp. 60-61.
19. Bryce, The American Commonwealth, vol. 1, p. 12.
20. Ibid., p. 42.
21. Ibid., pp. 42-43.
22. Ibid., p. 44.
23. Jacques Barzun, A Stroll with William James (New York; Harper & Row, 1983), pp. 181-183.
24. The pragmatism of the pragmatic will-to-believe school was influential in colonial Australia. E. Morris Miller argues that by the late nineteenth century, the will-to-believe and will-to-act school had "left deep traces in quarters not directly linked up with the University tradition, and notably in one of our great political leaders, Alfred Deakin." Preferring the philosophical life to the political life, Deakin's friendship with Josiah Royce, and his "affiliations with thinkers imbued with decidedly practical leanings, remained with him as a source of inward strength and mental power." See E. Morris Miller, "The Beginnings of Philosophy in Australia," Australasian Association of Psychology and Philosophy 7 (December 1929): 246.
25. J. A. LaNauze, The Making of the Australian Constitution (Melbourne: Melbourne University Press, 1972), p. 18.
26. Ibid.
27. Alfred Deakin, Offcial Record of the Debates and Proceedings of the Australasian Federation Conference (Sydney: Legal Books, 1890), p. 89.
28. LaNauze, The Making of the Australian Constitution, p. 272 and p. 19.
29. The fundamental nature of both the colonial and the federal constitutions has attracted a significant body of scholarship. Much of it, however, has failed to adequately address the philosophy of the colonial and Commonwealth constitutions. John Wright argues that the federal Constitution is usually described as either monarchic and parliamentary, or republican and federal, but that both these terms are the products of particular forms of analysis: institutionalism and revisionism. Establishing the origins and limitations of revisionist and institutional approaches, Wright concludes that an analysis of nineteenth-century Australian political thought and its place in the historical discourse is better suited to the study of the nature of the colonial and federal governments. See John S. F. Wright, "The Nature of the Australian Constitution: The Limitations of the Institutional and Revisionist Approaches," Federal Law Review 28 (September 2000): 345-363.
30. James Bryce, Modern Democracies vol. 2 (London: Macmillan, 1921), p. 198.
31. W. K. Hancock, Australia (Brisbane: Jacaranda, 1930), p. 45.
32. Ibid., pp. 54-55.
33. Hugh Collins, "Political Ideology in Australia: The Distinctiveness of a Benthamite Society," Daedalus: Journal of the American Academy of Arts and Sciences 114 (Winter 1985): 153.
34. Ibid., 151.
35. John Forster "Parliament of New South Wales," Sydney Morning Herald, 18 August 1858, p. 5.
36. Ibid.
37. Ibid.
38. The utilitarian thesis for representative democracy denied the principles of revolution and universal rights. Jeremy Bentham's utility principle, from which the aims of the radical English reform movements derived, was founded on a calculus of pleasures, under which government had a duty toward general utility through parliamentary democracy, and citizens had no natural rights against its authority. Thus, like the English political unions, colonial democrats were able to argue the democratization of Parliament without appealing to either the original contract or the universal rights of man. See Elie Halevy, The Growth of Philosophic Radicalism (Boston: The Beacon Press, 1959), p. 127.
39. Bryce argued that Australia, of all modern democracies, was the "least trammeled by intellectual influences descending from the past." Herein, a key factor was physical distance. "During its early years, when the character of each colony was being formed, each lived an isolated life, busied with its own local concerns, knowing little about others, and knowing still less, until telegraph lines were laid along the ocean bed, of the great world of Europe and America." In Darwinian terms, Bryce argued that the isolated Australian environment had imparted an insular, introspective, and even ignorant character to both its government and its people that contributed to their appetite for democratic government. See Bryce, Modern Democracies, pp. 181-182.
40. Wilson, "Bryce's American Commonwealth," 165. Wilson maintained that a thorough account of the American political system must go beyond comparative politics. "Comparative politics must yet be made to answer the broad all-important question: What is democracy that it should be possible, nay natural, to some nations, impossible as yet to others?" For example, political scientists needed to ask why England had approached democratic institutions "by slow and steady stages of deliberate and peaceful development," and why democracy had existed "in America and Australia virtually from the first" For Wilson, these questions were important because they addressed "the most truly significant thing now to be discovered concerning democracy... what is its relative function, its characteristic position and power, in politics viewed as a whole." Wilson regretted that Bryce had deliberately avoided these questions; "the author of The American Commonwealth , who has given us a vast deal, might have given us everything." See Wilson, "Bryce's American Commonwealth," 168-169.
41. Wilson, "Bryce's American Commonwealth," 165. Wilson maintained that a thorough account of the American political system must go beyond comparative politics. "Comparative politics must yet be made to answer the broad all-important question: What is democracy that it should be possible, nay natural, to some nations, impossible as yet to others?" For example, political scientists needed to ask why England had approached democratic institutions "by slow and steady stages of deliberate and peaceful development," and why democracy had existed "in America and Australia virtually from the first" For Wilson, these questions were important because they addressed "the most truly significant thing now to be discovered concerning democracy... what is its relative function, its characteristic position and power, in politics viewed as a whole." Wilson regretted that Bryce had deliberately avoided these questions; "the author of The American Commonwealth , who has given us a vast deal, might have given us everything." See Wilson, "Bryce's American Commonwealth," 168-169.
42. Henry Parkes, Official Report of the National Australasian Convention Debates, ed. G. S. Chapman (Sydney: Legal Books, 1986), p. 33.
43. Ibid., p. 204.
44. Alfred Deakin, Official Report of the National Australasian Convention Debates, p. 91.
45. Ibid., p. 94.
46. John Corkburn, Official Report of the National Australasian Convention Debates, p. 131.
47. Ibid., p. 144.
48. Brian Galligan, A Federal Republic (Melbourne: Cambridge University Press, 1995), pp. 166-167.
49. Henry Higgins, Official Record of the Debates of the Australasian Federal Convention Third Session, ed. G. S. Chapman (Sydney: Legal Books, 1986), pp. 351-352.
50. Patrick Glynn, Official Record of the Debates of the Australasian Federal Convention Third Session, p. 353.
51. Cockburn, Official Record of the Debates of the Australasian Federal Convention Third Session, 659-660. A modified clause, which guaranteed that no religious test should be necessary to hold office under the Crown, was later introduced when church groups forced the inclusion of a divine recognition in the preamble. However, the new clause was introduced on the sole basis that it might satisfy opponents of the inclusion of the recognition and to encourage them to approve the draft at referendum. See Official Record of the Debates of the Australasian Federal Convention Third Session, pp. 1773-1775.
52. Cockburn, Official Record of the Debates of the Australasian Federal Convention Third Session, 659-660. A modified clause, which guaranteed that no religious test should be necessary to hold office under the Crown, was later introduced when church groups forced the inclusion of a divine recognition in the preamble. However, the new clause was introduced on the sole basis that it might satisfy opponents of the inclusion of the recognition and to encourage them to approve the draft at referendum. See Official Record of the Debates of the Australasian Federal Convention Third Session, pp. 1773-1775.
53. Today, clause 80 stands as part of the federal Constitution, but its inclusion was not intended to embrace the American spirit of natural rights. In Melbourne, Isaac Isaacs argued the desirability of including a clause emphasizing the importance of trial by jury, but maintained that clause 80, as it stood, was neither a rights-based protection of trial by jury nor an abstract fetter on the Commonwealth government. Isaacs argued that whereas the U.S. Constitution outlined that "the trial of all crimes" would be conducted before a jury, clause 80 of the Australian Constitution merely outlined that "the trial of all indictable offenses" would be conducted before a jury. As it was the responsibility of the federal government to determine offenses against the Commonwealth, it was also the responsibility of the government to decide which offences would be prosecuted by indictment. Thus, framed as it was, Isaacs argued that the clause did not reproduce the spirit of the U.S. Constitution and would ultimately be of little consequence. See Isaac Isaacs, Official Record of the Debates of the Australasian Federal Convention Third Session, pp. 352-353.
54. Cockburn, Official Record of the Debates of the Australasian Federal Convention Third Session, pp. 685-686.
55. Isaacs, Official Record of the Debates of the Australasian Federal Convention Third Session, p. 687.
56. Ibid., p. 668.
57. Charles Kingston, Official Record of the Debates of the Australasian Federal Convention Third Session, p. 678.
58. Even in the text of the 1891 draft, the similarities between the Australian Senate and the U.S. Senate are obvious. Section 9 of the 1891 draft reads: "The Senate shall be composed of eight members for each State, directly chosen by the Houses of Parliament of the several States during a session thereof, and each senator shall have one vote." Section 54 continues: "laws appropriating any part of the public revenue, or imposing any tax or impost shall originate in the House of Representatives."
59. The principle derives from the Roman Republic. In ancient times, the Roman Senate elected two consuls in order to provide checks and balances against their authority, while it also reserved the right to review the consuls' legislation and foreign policy.
60. John Quick and Robert R. Garran, The Annotated Constitution of the Australia Commonwealth (Sydney: Legal Books, 1901), p. 418.
61. John Lyne, Official Report of the National Australasian Convention Debates First Session, ed. G. S. Chapman (Sydney: Legal Books, 1986), p. 668.
62. Edmund Barton, Official Report of the National Australasian Convention Debates First Session, p. 669.
63. Barton spoke with delicacy on the matter and was reluctant to "go any further than to place this much on record" because, as he said, the effects of democratic elections within enlarged electorates were plainly evident "in the process which sent us here." See Barton, Official Report of the National Australasian Convention Debates First Session, p. 669.
64. See Patrick Glynn, Official Report of the National Australasian Convention Debates First Session, pp. 673-674.
65. John Forrest, Official Report of the National Australasian Convention Debates Second Session, ed. G. S. Chapman (Sydney: Legal Books, 1986), p. 362.
66. Ibid.
67. Simon Fraser, Official Report of the National Australasian Convention Debates Second Session, pp. 363-36-4.
68. Galligan, A Federal Republic, p. 51.
69. Ibid., p. 53.