Particularly in the Jean-Jacques Rousseau (1712–1778) had already famously stated that the English only think they are free. However – he continued – this is only true for the brief period when elections to parliament are taking place, while they are slaves for the duration of the parliament itself. In a less well-known footnote in the same work, however, he conceded that the English are "plus près de la liberté que tous les autres".1 Universal (male) suffrage was nonetheless introduced considerably earlier in – in 1793 and then permanently from 1848, as opposed to 1918 in Britain. While women were able to vote in as early as 1776 (up to 1807) and in an increasing number of territories and states during the 19th century, they did not receive full voting rights in Britain until 1928. In spite of this lag in development in Britain, the much referenced long tradition of the democratic element in the British constitution is by no means a complete fallacy. From the 16th century, the idea emerged in England that the merit of the English constitution was based on the fact that it was an Aristotelian mixed constitution, in which the monarchy (king), the aristocracy (House of Lords) and democracy (House of Commons) merged harmoniously, which gave it stability and protected it against political degeneration.2 While this idea remained very much contested idea in the 17th century, which featured many serious constitutional conflicts, it developed into a dogma in the 18th century. At the end of the century, John Adams (1735–1826) noted that the American constitutions were also mixed constitutions. However, the three elements in America (president, Senate and House of Representatives) were of course not a reflection of a social hierarchy – as all people were equal – but instead embodied three separate "offices" of the state.3media, is often referred to as the "oldest democracy in the world" – a misleading description.
It seems appropriate to examine the situation on both sides of the Atlantic in the 18th century more carefully. At this time, European Anglophilia had reached its zenith and the British constitution had become a shining paradigm for enlightened . Parallel to this transfer of British constitutional concepts to Europe, a serious controversy erupted on both sides of the Atlantic regarding the extent of the actual transfer of fundamental British constitutional and legal principles to . The 18th century thus serves as a departure point for the question of why this transatlantic transfer ultimately failed in spite of the fact that both sides had the same fundamental convictions. The American Revolution also brought an end to the rise of European Anglophilia.
As a result of developments in America, there were two different constitutional models in existence by the early-19th century, which served as starting points for the emergence of two completely different models of democracy during the course of the 19th century. The dualism of the 19th century only gradually gave way from the early-20th century to an appreciation by both sides of their commonality – with each side accepting the differences in the other variant. As the United States rose to become a global power, and Great Britain lost its economic and then its political and military importance in the world, the two countries developed a close political relationship again in the face of common enemies. At the same time, the belief emerged that their different constitutional and democratic models were based on the same values and on shared roots. In Europe, by contrast, the political ruptures and developments from the late-18th century onward dissipated political Anglophilia over the longer term. In the first half of the 19th century, moderate and conservative liberals retained their admiration for the British constitution. However, from mid-century at the latest only a minority of progressive liberals still regarded the British parliamentary monarchy as a political ideal worth aiming for. By contrast, their more conservative contemporaries, some of whom continued to admire Edmund Burke (1729–1797), were put off by the democratization of the country, whereas among German democrats the American constitution became the example worth following.4
The Initial Situation
The British Constitutional Model in the 18th Century
What in 18th century Europe was held up as a model of an auspiciously liberal constitution – most notably by Charles de Montesquieu (1689–1755)– was a partial and distorted representation of British reality. As Montesquieu's Esprit des lois was published in 1748 with its famous chapter on the British constitution (book XI, chapter 6),5 almost twenty years had passed since his formative stay in England (1729–1731). In the interim, Britain's constitution had continued to develop.
According to Montesquieu's understanding of the British constitution, its central components – the king and the parliament – were in a state of power-political equilibrium. However, this had little in common with the reality of the British constitution around 1770. As a result of the Glorious Revolution (1688/89), the position of the parliament had been considerably strengthened in relation to the king. The Bill of Rights (1689) had deprived the king of important rights to which had laid claim. These, which included the suspension of and exemption from laws, the establishment of church and other extraordinary courts, the raising of taxes and duties, the raising and funding of standing armies in peace time, were now among the prerogatives of the parliament. For the first time, the king had to swear in his coronation oath to rule in accordance with parliamentary laws and existing rights. Additionally, the parliament had transitioned to authorizing the funds for the king's court and the normal business of reigning only for a few years at a time instead of for his lifetime, which guaranteed the parliament considerable influence over how he ruled and the policies he pursued.6 In 1701, the Act of Settlement established the independence of the legal system, thereby removing judges from the king's influence. Additionally, the parliament decided unilaterally and in contravention of the normal rules of succession that the crown would pass to the House of Hanover after the death of Queen Anne (1665–1714). This introduced a foreign dynasty into a country that was deeply divided politically. In order to secure its own political survival, this dynasty placed itself completely in a position of dependency on the Whig-dominated parliament, which immediately increased the length of its legislature period from previously three years to a maximum of seven years.
The first two Hanoverian kings (George I and George II), who reigned between them from 1714 to 1760, were confronted with a country whose political culture and language posed a considerable challenge to them. During their reigns, the country was de facto not governed by the king and his Privy Council – as it had been before the Glorious Revolution – but by a committee formed by a majority of the parliament, the cabinet under the formal leadership of a prime minister, the decisions of which (along with the parliamentary laws) had to be ratified by the king. Theoretically, the king had the right to reject these, but in reality this has never happened from 1707 to the present day.7 The result as it existed around 1770 was not an equilibrium between two separate powers, as celebrated by Montesquieu and the Anglophiles in Europe. Rather, at the top of the British constitution was a king whose political freedom of action had become increasingly narrow and who (up to the early-1820s) could appoint a prime minister of his choice, but could not keep him for long in the face of continuing resistance from the parliament. Conversely, the parliament had attained a position of power which was practically unlimited. Neither the king nor the courts could legally oppose a valid parliamentary law. But the parliament could ignore objections and it could pass new laws at any time.8
It was this omnipotence of the British parliament – which subsequently came to be known, and is still referred to, by the term "parliamentary sovereignty" – which liberal Europe in the 18th and 19th century refused to acknowledge.9 As late as 1771, in his classic work on the British constitution painted a decidedly Montesquieuian picture,10 while the settlers on the other side of the Atlantic opposed the development of a British constitutional model with increasing vehemence.
The British Colonies in North America
The 13 British colonies on the east coast of North America between and had been founded between 1607 and 1732, not through the direct intervention of the state – as was the case with the Spanish colonies further south – but by private corporations with economic, religious or philanthropic goals. The colony of Nieuw Nederland – which largely corresponded to the present-day states of , New Jersey and – fell to Britain in 1664. Armed with royal charters, these colonies proceeded with the colonization of the territory allotted to them, while and came into being when they seperated from and had their independence confirmed in by royal charters in 1662/1663.
All of these colonies maintained separate relationships with the mother country, and these relationships were very heterogeneous. The colonies were largely self-administered – in accordance with the British model – by a governor, a council which assisted him and was in most cases appointed by him, and an elected assembly, which in most cases set the salary of the governor on an annual basis. As a result of the constant immigration from the British Isles and from the German-speaking regions in Europe, as well as the influx of black slaves from , the importance of these colonies to the British economy increased constantly. Unsurprisingly then, periods in which the colonies were politically neglected alternated with efforts to bind them more closely to the mother country and to establish greater uniformity with regard to their political and legal status. Charters were occasionally suspended or revoked, but this never resulted in a tightly run colonial empire, even though the laws passed in the colonies could be revoked by the government in London.
In the end (1776), there were eight so-called royal colonies, in which the king appointed the governor, three proprietary colonies (11, Delaware and ) belonging to the Penn and Calvert ( ) families which each appointed their own governor, and the aforementioned Rhode Island and Connecticut, which elected their own governors.
The Transatlantic Transfer Process
British efforts to gain tight political control over the North American colonies failed for a variety of reasons. The Pilgrim Fathers, apostates from the English state church who had been living in exile in Holland, had crossed the Atlantic with a party of emigrants from London on the Mayflower. Before they landed atin present-day Massachusetts, they agreed on 11 November 1620 that together they would found a "civil Body Politick, for our better Ordering and Preservation". Their aim was
[to] do enact, constitute, and frame, such just and equal Laws, Ordinances, Acts, Constitutions, and Officers, from time to time, as shall be thought most meet and convenient for the general Good of the Colony; unto which we promise all due Submission and Obedience.12
This Mayflower Compact is not the famous founding document of American democracy, but it is the earliest and most striking expression on the other side of the Atlantic of the desire to organize political affairs in accordance with rules and laws which they established themselves and which were equally binding for all. Up to 1776, this endeavour was based on the constantly repeated conviction that they were freeborn Englishmen who had brought their English "birthrights" with them to the New World. According to the colonies, this included the right to govern themselves and only to obey the laws and accept the taxes which had been imposed by themselves or by their freely elected representatives. They viewed these principles as being the foundation of the English/British constitution, to which they continued to feel a strong attachment.
In reality, however, the British constitution had changed dramatically over time. Immediately after the Glorious Revolution, which had caused considerable unrest in some of the North American colonies,13 the British government had insisted that the outcome of the revolution, the so-called Revolution Settlement, did not apply to the colonies.14 Additionally, the parliament majority was at no time willing to accept that the colonies were being put directly under the control of the king – similar to the – which would have deprived the parliament of all legislative powers in relation to them.15 The more the settlers in the colonies insisted on having their ancestral rights vindicated, the more insistently London refused to clarify the legal position of the colonies and their inhabitants in a binding manner. As a result, the political leaders in the colonies laid claim even more forcefully to the British Constitution and its fundamental principles, as they understood them, which should apply in full to the colonists also, regardless of political aberrations in London.16
From the 17th century, there had been repeated British attempts to regulate trade within the empire by means of laws. Where these laws could not be circumvented through smuggling, they were grudgingly tolerated, sometimes under protest. However, when the parliament moved to introduce internal taxation in 1765 in the form of the Stamp Act, it crossed a red line from the perspective of the colonies. The British government was forced through mass resistance to revoke the law after only a few months. However, the immediate passage through parliament of the Declaratory Act (1766) inflamed the situation, as it contained the declaration that the parliament "had, hath, and of right ought to have, full power and authority to make laws and statutes of sufficient force and validity to bind the colonies and people of America, subjects of the crown of Great Britain, in all cases whatsoever".17
It was this thundering insistence on the omnipotence of the British parliament that the leaders of the American resistance persistently refused to accept, countering it with their interpretations of the British constitution – supported with arguments from natural law – which in Britain only interested a liberal minority sympathetic to the settlers. While the government persistently refused to transfer fundamental elements of its constitution to America, the settlers in America insisted that this transfer had already occurred with their own migration.18 Relying on their liberal advocates in Britain, the settlers paid little attention to the further development of the constitution which had occurred in the mother country in the interim. Instead they condemned these developments as a degeneration that had corrupted the constitution.19
The American Constitutional Model
This explains why the American constitutional model that emerged from this crisis was so different to its British antecedent, even though the authors of the American model categorically never rejected the British constitution.20 This American model was reflected in the constitutions that the former colonies adopted after they became independent in 1776, including the Federal Constitution of 1787.21 The Virginia Declaration of Rights of June 12 1776is a key document. It contained ten fundamental principles. The leaders of the American resistance were convinced that these principles directed against the policies of London constituted – at least philosophically – the basis of the British constitution, as they understood it. It was their view that these principles simply needed to be expressed more clearly in order to prevent a political degeneration similar to that which had occurred in Britain. Since then, these ten principles have formed the basis of modern constitutionalism worldwide: the sovereignty of the people, universal principles, human rights, a representative government, checks and balances, restrictions on the power of the government, judicial independence, accountability, the constitution as the supreme law, and the participation of the people as a requirement for constitutional amendments.22 With the exception of the sovereignty of the people, all of these could be interpreted as constitutive features of the British constitution as described by William Blackstone (1723–1780), the most authoritative commentator on that constitution.23
These principles were increasingly included in the American constitutions, with the Constitution of Massachusetts of 1780 – the oldest written constitution still in force today anywhere in the world – and the Federal Constitution of 1787 serving as important milestones in this development. The Constitution of Pennsylvania of 1776, by contrast, deviated from the American model and represented a radically democratic alternative, which was to serve as a model for the Jacobin constitution of 1793 during the French Revolution.24 The American model was based on a written constitution, which in 1776 still consisted of two parts, the Declaration of Rights, which contained the principles on which the constitution was based, and the Frame of Government, which codified the distribution of power and the organization and tasks of the various parts. The two elements together made up the constitution and were subsequently quickly ratified as a single document. From 1790, with the second constitution of Pennsylvania, the Declaration of Rights was in some cases moved to the end of the constitution contrary to the original intention. The essential character of the American model, which the structure of 1776 had displayed so visually, was nonetheless retained: The purpose of a constitution was to guarantee the rights and liberties of the citizens and to organize state power in such a way as to prevent it from encroaching on them. In particular, the guiding principles of sovereignty of the people, the declaration of human rights, the strict separation of powers – with the judiciary for the first time as an independent third branch of the state –, the constitution as the highest law, but also the novel federal structure of the Union, appeared to be more consistently expressed than in the British constitutional model. From the American Revolution onward, some Europeans came to view the American model as an expression of liberal principles superior to its British antecedent.
The Dualism of the 19th Century
USA: Democracy as the Expansion of Individual Rights
It was not the goal of the American constitutional model to introduce democracy into the United States, and the vast majority of the founding fathers would have indignantly rejected such a suggestion.25 In spite of the participation of the people, the political culture of the country in the 18th century was fundamentally elitist. However, this would quickly change due to the influence which the French Revolution had on the United States. In 1800, Thomas Jefferson (1743–1826) won the presidential election against John Adams with a slogan calling for a return to the "spirit of 1776".
Democracy adopted a new tone – some spoke of "Jeffersonian democracy" –, and the general climate changed. In some states, voting rights were expanded and the previous property qualifications lapsed or were reduced. After the war of 1812, these restrictions almost completely disappeared in the new states of the West. However, there were also countervailing trends. In 1807, the women in New Jersey lost their voting rights again for more than a century, and free blacks were denied the right to vote in an increasing number of states.26 In the old , in which – in contrast to – political representation was based on the county rather than the township, the old elite generally prevented any change in political representation up to the Civil War. Thus, the old elite upheld the dominance of the coastal regions over the hinterland, even though the majority of the population had long since been living in the latter. In the case of , this resulted in the state splitting after secession, with the western counties rejecting the continuing dominance of the east coast elite. was admitted to the Union as a separate state in 1863.
The country had fundamentally changed in the turmoil of the intervening period. In 1828, Andrew Jackson (1767–1845) became the first president who did not come from the east coast elite of Virginia or Massachusetts. More than any other American president, Jackson is associated with the victory of democracy in the country. Alexis de Tocqueville (1805–1859) provided an incisive analysis of its effects on political culture in his era-defining book De la Démocratie en Amérique (On Democracy in America; two volumes 1835/1840) , in which he held up a mirror to France in particular.27 The "Jacksonian democracy" also became known as the era of the common man, even though the last property qualifications stubbornly persisted in the voting rights of some of the east coast states. However, modern parties emerged, which attracted the support of voters of all classes and involved them in the procedure of nominating candidates for office. Many states adopted new constitutions, which stood on a broader democratic basis – including in some cases judges elected by the people, a measure intended to ensure democratic legitimacy and to bring the judiciary closer to the people. American politics became less elitist – except in the South – though there were clear limits to this change. It did not extend to women or black people, not to mention the original inhabitants of the continent, who continued to be excluded from American society and were in many cases brutally expelled from their native or allocated territories when they stood in the way of the financial interests of white people.28
The upheaval of the Civil War (1861–1865) was followed by further expansions of individual rights, which now completely lost their previous societal context. The legal position of women began to improve fundamentally, and from 1869 the first territories and states – though still few in number – granted them voting rights . However, an attempt to do this at the federal level failed in 1870, as the 15th amendment to the constitution did not list gender – in contrast to race, skin colour "or previous condition of servitude" – among the reasons for which withholding voting rights was unlawful. The 14th Amendment of 1868 was to have more far-reaching consequences. Its legal guarantees not only strengthened the power of federal government over the individual states, but, as a result of a Supreme Court judgement (Supreme Court ) in 1925, made a majority of the individual rights contained in the Bill of Rights of the Federal Constitution applicable to the individual states. The 15th Amendment and more recent laws notwithstanding, there have been repeated attempts right up to the present to exclude particular people or groups from voting or to thwart their exercise of the right to vote.
The progressive movement at the beginning of the 20th century brought a further leap forward in democratization by decisively combatting political corruption. Primary elections were introduced to enable the citizens to play an active role in the selection of the candidates of the parties, thereby bringing this process out into the open. Also introduced were the direct election of senators to the federal Senate (17th Amendment) and finally in 1920 female suffrage (19th Amendment).29
In spite of all the successes that the American democratic model had to show for itself in 1920, the dark sides were unmissable. The indigenous American population had been decimated and the remainder had been forced into dismal reservations and excluded from democratic development. They did not obtain full U.S. citizenship until 1924. Black people were discriminated against and segregated, which the Supreme Court had declared to be constitutional in an infamous judgment in 1896 (Plessy v. Ferguson). But even the majority population was at the mercy of a rampant capitalism with its rigid individualism, to the extent that another famous Supreme Court judgement (Lochner v. New York) of 1905 forbid the state of New York to regulate the working hours in bakeries, as this impinged on the freedom of contract – thus constituting discrimination – of the employers and employees. Put briefly, it was a democratic model which granted the individual many liberties, but which – ideologically justified with reference to the social Darwinism of the previous decades – allowed the strong to dominate, in spite of all of the efforts of the progressive movement at the beginning of the 20th century to make adjustments.
Britain: Democracy through Adjustment of the Institutions
Britain travelled a completely different path to democracy during the 19th century. The assertion that democracy was enshrined in Britain's mixed constitution through the representation of the people in the House of Commons needs to be qualified. In the parliament of 1265, which had a profound effect on subsequent developments, the "commons" had two representatives for each county (shire), known as the "knights of the shire", and two for each town (borough), known as "burgesses".30 This model remained the basis into the 19th century, though the representatives of the counties had increased in some cases, for example . The number of boroughs that had the right to be represented in the parliament had increased to several hundred during the Middle Ages, though many of them only had one parliamentary representative. There were also two representatives each for the universities of and . From the Middle Ages, the counties elected representatives on the basis of a passive vote for all men who owned a certain amount of real estate, the so-called "forty-shilling freehold". Voting rights in the boroughs were governed by the respective borough charter and varied widely. These boroughs had developed very differently over the centuries, some developing into large cities, such as London, while others remained small market towns, and others still lost some of their population or died out completely, such as Old Sarum near . As a result of this situation, as was pointed out in 1780, just 6,000 voters were enough to secure a clear majority in the Commons. After the Act of Union with in 1801, there were now 658 members in the House of Commons, 487 of which were to all intents and purposes nominated.31 These were the members for the small and practically non-existent boroughs, where the dominant local nobleman – in , which had a particularly large number of these boroughs, this was the heir apparent to the throne – decided who would sit in parliament for the borough in question. Thus, what up to 1832 theoretically constituted the democratic element in the British constitution was in reality a parliamentary chamber whose majority consisted of younger sons, relatives and dependents of peers, who themselves sat in the House of Lords.
Calls for reform became increasingly loud, particularly as during the course of the Industrial Revolution cities such as , and became urban centres of national importance, but did not have their own representation in the parliament. After long struggles and a serious political crisis, the first Representation of the People Act (the so called "Great Reform Act") was passed in 1832. 56 of the so-called "rotten boroughs" lost their parliamentary representation completely and 30 others now only had one representative in the Commons. The seats in parliament which became free were primarily distributed among the new industrial cities in the north and the emerging cities in the greater London area. In addition to the relatively modest changes in the representation of the cities and a number of other changes in the county representation, voting rights in the cities were extended to the owners of all properties yielding an annual income of at least ten pounds.32
This law was by no means revolutionary, but it nevertheless removed obstacles on the path to democracy. It permanently weakened the position of the king and the House of Lords, who were forced to grudgingly ratify the law – to "reform, that you may preserve" in the imploring words of Thomas Babington Macaulay (1800–1859).33 It also strengthened the Commons as the politically dominant chamber of parliament, in which the influence of the peers was waning. Subsequently, the Whigs and the Tories developed into the modern parties of the Liberals and the Conservatives, which from that point on had to compete for votes and majorities. While the workers received no influence over elections, the role of the middle class was strengthened. During the course of the 19th century, an increasing number of cabinet ministers and even the prime minister came from the middle class.34
Subsequent Representation of the People Acts of 1867, 1884–85 and 1918 gradually democratized the basis of representation further, ultimately introducing the one-member constituencies still in operation today. Additionally, voting rights were made more uniform and were gradually extended. In 1918, all men over 21 years of age and tax-paying women or women married to tax-paying men over 30 years received the right to vote. With this the aristocracy had lost is remaining influence over the composition of the Commons. Lord 35, who became prime minister in 1895, was the last prime minister to sit in the House of Lords.
As a result of these reforms, a democratic model had emerged in Britain which, while it appeared to have retained its medieval institutions, largely limited the role of the king to ceremonial duties. The actual power was in the hands of a cabinet under the leadership of a prime minister, who had the confidence of a majority in the Commons. In an evolutionary and gradual process, the venerable institutions had been lead into the modern era. The old elitist structures were still very much intact at the beginning of the 20th century and subsequently remained in existence for a number of decades. Great Britain thus remained far removed from the "rule of the multitude", as James Bryce (1838–1922) described the situation in America.36 This is the other side of this model, which proudly proclaims that it has integrated the working class into the political system and its institutions without ruptures or revolution.
The path taken by Britain in the 19th century of assisting the democratic breakthrough by means of institutional reforms had already begun earlier, and continued in the form of further institutional reforms in the 20th century,37 a trend which can also be observed in the United States with the emergence of individual rights. The debate about rights in the USA had played an important role during the colonial period and resulted in the second half of the 20th century in the Civil Rights Revolution. This included the end of segregation, which came with the Brown v. Board of Education of Topeka judgement in 1954, and the recognition of the equal value of votes by having electoral constituencies the same size – Baker v. Carr in 1962 – as well as the Civil Rights Act of 1964 and the Voting Rights Act of 1965.38 In Britain, the political institutions had been undergoing change even before the Glorious Revolution and it continued throughout the 18th century. The House of Lords reforms of 1911, 1949 and 1999 were important milestones in this development in 20th century, and even today there is no end in sight. In both countries, however, the reforms of the 19th century in particular are associated with the victory of democracy.
These reforms changed the basic character of the constitutions of both countries. The concept of a mixed constitution, which was still so prevalent on both side of the Atlantic in the 18th century, declined. To many people in Europe, who drew encouragement from the American and French revolutions, the British constitution had lost its status as the example to be followed. During the further course of the 19th century, the old model was replaced by a new paradigm – though it was supported by a considerably reduced liberal fraternity –, for which Britain was also responsible: the ideal of a parliamentary monarchy as a middle path between authoritarian constitutional monarchy and the republic. This generally gave rise in the 20th century to constitutions with parliamentary forms of government. The governments of these constitutions could be formed from among, and by the parliamentary majority due to the "soft" separation of powers. Without discussing the broad array of theories of democracy,39 the Westminster model as it emerged in Britain is one such model. It is a "majority and opposition democracy" in which the government is at all times faced with a political opposition which represents an alternative to the government both in terms of policies and personnel – and the seating layout in the parliament chamber reflects this. The opposition keeps a watchful eye on the government, challenges it and is at all times prepared to take its place. This system has been imitated in an array of former British colonies and present-day Commonwealth states, as well as in other states.
The alternative American constitutional model is one of a presidential republic with a strong separation of powers, in which the president as the head of the executive leads the government with a large degree of autonomy and – in contrast with Britain – cannot be brought down by the parliament by means of a "no confidence" vote. Conversely, however, the president may have to deal with a parliament that is politically opposed to him/her and which may persistently hinder his/her governing. This constitutional model has been adopted particularly widely in Latin America and – after 1989 – in many of the states of the former Eastern Bloc, though some states have since witnessed movements against overbearing and self-aggrandising presidents.
What began with the Anglophilia of the 18th century as the glorification of the progressive British constitution, was widely celebrated in the 20th century as the liberal, Western constitutional and democratic model, with Britain and the United States being viewed as the foremost exponents of this model. In this way, the differences in detail between the two as well as the deficiencies and omissions which are a feature of every system appear as being of secondary importance, and there is a clear emphasis – not unlike in the 18th century – on the liberal basic structure of these constitutions. This is reminiscent of James Harrington's (1611–1677) ideal of an "empire of laws, and not of men",40 which is viewed as the hallmark of Western democracies, and which, though it is to an extent a high-minded goal, is fundamentally a continuing challenge, and one which leaves no room for complacency.