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Our ancestors constituted themselves as a people, and then delegated certain authorities to kings and other magistrates. They had a settled way of sharing the sovereign power of the nation among its various estates, and they guaranteed their fellow subjects certain rights, which were under- stood to inhere in them not as human beings, but as members of a particular national community of common place, blood and custom. II The Problem with Locke In the Second Treatise Locke makes a prodigious leap from the sovereign rights of individuals in a state of nature to the sovereign right of a political community.

For him, a community is defined by the self-interest of its indi- vidual members. Its basis is an agreement of members to transfer their individual right to execute the laws of nature to the group as a whole. According to this definition of political society, or community, not even a minor interest group or faction may be legitimately denied the right to form its own commonwealth. See J. Burns with the assistance of M. Goldie Cam- bridge, , p.

ALEXANDER-DAVEY As if anticipating Locke, Filmer, in The Anarchy of Mixed or Limited Mon- archy writes: Since nature hath not distinguished the habitable world into kingdoms, nor determined what part of the people shall belong to one kingdom, and what to another, it follows that the original freedom of mankind being supposed, everyman is at liberty to be of what kingdom he please, and so every petty company hath a right to make a kingdom by itself; and not only every city, but every village, every family, nay, and every particular man, at liberty to choose himself to be his own King if he please; and he were a madman that being by nature free, would choose any man but himself to be his own gov- ernor.

Thus to avoid the having but of one King of the whole world, we shall run into a liberty of having as many Kings as there be men in the world, which upon the matter, is to have no King at all, but to leave all men to their natural liberty, which is the mischief the pleaders for natural liberty do pre- tend they would most avoid. Before one speaks of popular sover- eignty, the question of demarcation must be answered.

If one insists on start- ing with a random multitude of completely independent and historically unencumbered individuals, one has in fact a recipe for anarchy. Why should this individual, that family or that city participate in any larger community, submit to any larger constitutional discipline at all?

As Jeremy Rabkin notes in Law without Nations? It is per- haps an unfair critique of that work, for Hunton actually grounds his argument for popu- lar sovereignty and constitutionalism on the assumption, which he proceeds to demon- strate, that England is a distinct nation, and that it has a long history as a constitutionally limited monarchy. But in response to Locke the critique seems entirely justified.

So Locke says that political communities arise, in the first place, among those with special affinities. Law without Nations? But Locke and succeeding generations of liberal theorists, buttressing their arguments as they do on uni- versalist claims about human beings and human groups as such fail to tell us anything substantive about the sources of friendship and mutual trust among the members of particular polities or the factors that make one group of human beings a polity distinct from other polities.

Hobbes well understood that if one could disprove the possibility of a coherent pre-political community, the doctrine of popular sovereignty could be eviscerated. Before there is a sovereign, or a state, there is no society, there is no people; there is only a multitude of individuals. Without a Sovereign to forge their unity by substi- tuting his will for all of their individual wills, they can have no common exis- tence. Without the notion of a coherent pre-political com- munity to support it, the doctrine of popular sovereignty can be turned upon its head, and transformed into an argument for absolute monarchy.

The Hobbesian formulation of absolutism is a late one. The older justifica- tions of absolute monarchy deny not the existence, but the relevance of a pre- political English community.

The historical narrative offered by supporters of the King throughout the seventeenth century refer to a single event, the 21 Locke, Two Treatises, p. Blackwood compares the position of the English to that of the American Indians after the Spanish conquest. Where he gave the Law, and tooke none, changed the Lawes, inverted the order of gov- ernment, set downe the strangers his followers in many of the old possessours rooms, as at this day well appeareth a great part of the Gentlemen of England being come of the Norman blood, and their old laws, which to this day they are ruled by, are written in his language, and not in theirs: and yet his successours have with great happinesse enjoyed the Crowne to this day.

Supporters of the monarchy, such as Nicholas Ferrar, would accept this theory, adding that the Anglo-Saxons had been dissolute, and that the imposition of absolute rule upon them had been to their benefit. In the final chapter of Leviathan, Hobbes criticizes those monarchs who use historical arguments to justify their authority.

It is unwise, he says, for them to justifie the War, by which their Power was at first gotten, and whereon as they think their Right dependeth, and not on the Possession. As if, for example, the Right of Kings of England did depend on the goodnesse of the cause of William the Conquerour, and upon their lineall, and directest 24 This, of course, was not the only justification of absolute monarchy.

Sommerville, Politics and Ideol- ogy in England, — London, These theories too necessarily denied the relevance of a pre-political English community. David Macey New York, , pp. Therefore I put down for one of the most effectuall seeds of the Death of any State, that the Conquerors require not onely a Submission of mens actions to them for the future, but also an Approbation of all their actions past; when there is scarce a Common- wealth in the world, whose beginnings can in conscience be justified.

Such a reminder challenges all rebels to appeal to the lost honour of conquered ancestors and to speak of a restoration of ancient rights lost at the time of the conquest. So as not to provoke such dangerous imaginings, the monarch should emphasize that his right to rule is based on his present possession of the power to protect.

But they resorted of necessity to arguments that denied any particu- lar rights and privileges to the English as a distinct nation. For instance, in James I declared before the House of Commons: First therefore in the matter, all kings Christian as well elective as succes- sive have power to lay impositions. I myself in Scotland before I came hither, Denmark, Sweden that is but newly successive, France, Spain, all have this power.

And as Bellarmine abuses me in another sense solus rex Angliae timet, so shall solus rex Angliae be confined? If other kings 29Hobbes, Leviathan, p. Shall the King of England alone be confined? Foster, Proceedings in Parliament Vol. Is he not like any other Christian monarch? For good measure, James I buttresses his claim by citing what he believes to be a precedent in English law.

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Constitutional Self-Government

He makes mention of this to be done in the time of 2 Queens. I remember not any such thing, but that by a statute of tonnage and poundage they had that they had. The King speaks of France and Spain what they may do, I pray let us be true to the King and true to ourselves and let him know what by the laws of England he may do. The laws of Scotland, Spain, France and other nations are of no consequence in this debate.

According to the ancestral customs of England, the only customs that matter here, the King may not lay impositions without consent of Parliament. His Majesty misunderstands the precedent he cites, for tonnage and poundage were collected by former kings of England only when authorized by statute, that is, by an Act of Parliament. If the Common Law of England is not taught up in Scotland, whence His Majesty hails, then we, the elected representatives of the counties of England, are duty-bound to instruct him on this point.

The nativist tone of the challenge is no accident. The narrative was that Englishmen were the descendants of Anglo-Saxon tribes from Germany, whose courage, love of freedom, and tradition of self-government by means of general assemblies had been noted by Tacitus in the Germania. In England the government of this nation of Anglo-Saxons had evolved into a mixed monarchy, in which King, Lords Temporal and Spiritual, and Com- mons ruled the nation conjointly.

With their vigilance and, when necessary, their courage, many 32 Ibid. Nothing in Sir Edward Coke, Mr Selden, Mr Prynne, and all late Writers when they chop upon these Times, and mention anything relating to them, but the Magnanimity of the English in Appearing for their Birth- rights, and the great Privileges they had formerly injoyed.

Present absolutist pretensions are thus an affront to all generations of Englishmen. Throwing off that yoke is a duty owed not only to the present gen- eration, but also to ancestors and to posterity. Locke is unique among seventeenth-century English political writers in making no appeal to the English national past. George Lawson, on the other hand, posits nationhood as such, and a historically rooted tradition of constitutional self-government — such as he believed generations of English- men had struggled to preserve — as necessary preconditions for popular sov- ereignty and constitutionalism.

His works, moreover, take for granted the nationalist narrative I describe above, and use it to good effect. This is indeed what makes his argument coherent and persuasive. Sandoz Indianapolis, ; C. Burns, pp. Sandoz, p. IV George Lawson on Nationhood and Popular Sovereignty Locke cannot help us understand the sources of mutual trust and friendship that bind the pre-political community together. The essential point is that the pre-political community is not just an aggregate of individuals inhabiting the same space.

Pace Hobbes, a multitude of individuals does not miraculously become a community when its members agree to establish a sovereign over them. But these are the sorts of things that, when held in common, generally distinguish communities from mere multi- tudes. For a genuine community capable of establishing its own government to 37 The editions of the two Lawson texts used here are as follows: G. Lawson, Politica Sacra et Civilis, ed.

Condren Cambridge, hereafter Politica ; G. Rogers Bristol, hereafter Examination. This society first pressupposeth union, and is a communion, whereby they communicate in something common to the whole; as in an organical body, there are many members.

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In reality, it is hard to specify what it is that makes a community a community. For Lawson, only a community whose members have a sense of belonging to things common to them all, who have cares that transcend the particular interests that concern each of them sever- ally, has potential to establish its own government. The language of communion suggests a reli- gious bond. Indeed, in his remarks on England, Lawson says that his national community has two focal points: the English interest and the Protestant Chris- tian interest.

The pre-political community thus has two guises: it is a community of blood and custom, and a community of faith. This is the foundation. The fact of common blood, laws, religion and country, supposing it could be objectively verified, is no guarantor of unity. The people have to acknowledge and value such commonalities; to perceive themselves as one nation, and desire cooperation with their fellow countrymen. For a community to be prior to the state, and to demand that the state serve the common good, said community must be a nation, whose members have care for one another and for the community they share, care based on per- ceived ties of kinship, language, religion, customs and laws.

But the theory can make sense only if it can indeed be asserted that, of the two entities, commu- nity and government, only the former is a permanent body. Membership in the community the nation is per- manent, whereas membership in the state, which we today call citizenship, is a contingent membership, which may be dissolved. Lawson uses the terms country, community, nation as interchangeably as do modern journalists and politicians.

This idea of a coherent pre-political body of men united by blood and cus- tom before the establishment of a civil government is analogous to the body of Christian believers united by common doctrine and worship before the estab- lishment of an ecclesiastical government. Lawson combines secular and religious ideas in his conceptualization of civil and ecclesiastical constitutions. However, one could just as well credit Lawson for having the good sense to dismiss a political theory based on a mere thought experiment. See also the Examination, p.

Philip Hunton and Nathaniel Bacon also speak of a secular self-governing Saxon nation which accepted the rule of kings on trust and deposed them for tyranny. For the community and peo- ple of England gave both king and parliament their being. Per- sonal majesty is given by the people to King and Parliament in trust: Personal majesty [is] fixed in some persons, who are trusted with the exer- cise of it, and may, and many times do forfeit to God, and in some cases for- feit it to the community or the people.

FSFC Constitutional Amendment 74

The person or persons trusted with the majesty and power are bound to seek the good of the whole people, and for that end they are trusted with it, and no otherwise. If the King and Parliament fail to keep their trust, they forfeit their power to the nation, the ultimate repository of sovereignty. This com- munity, with these racial, cultural and spiritual bonds, and these ancient tradi- tions of government may reframe its civil and ecclesiastical constitutions for the common benefit, as it has done before.

But as his more general reflections on the nature of the communal bond suggest, such a demonstration would not 57 Ibid. He writes: In all our sad divisions which happened from first to last, and are not wholly yet ended to this day, two things are worthy the serious consideration of wiser men than I am: What party for time past hath been most faithful to the English interest; and what course is to be taken for to settle us more firmly for time to come.

For the first, we must understand what the English interest is.

The English interest is twofold, civil and ecclesiastical; for we are Eng- lishmen and Christians. The civil interest is salus populi Anglicani. The interest ecclesiastical is the Protestant religion and the preservation of the substance thereof. Both Filmer and Hobbes identify the problem with this argument. OSO version 0. University Press Scholarship Online. Sign in. Not registered? Sign up. Publications Pages Publications Pages. Search my Subject Specializations: Select Users without a subscription are not able to see the full content.

Authors Affiliations are at time of print publication. Jed Rubenfeld, author More Less. Print Save Cite Email Share. Show Summary Details. Subscriber Login Email Address. Library Card. View: no detail some detail full detail. Front Matter Title Pages. Part I Living in the Present. One The Moment and the Millennium. Two The Age of the New. Five Commitment.