A few years ago I attended a convivial lunch with the distinguished British historian David Starkey at the Cato Institute. Prof. Starkey managed to ruffle some feathers by pointing out something that rather upset some of the constitutional lawyers present – that Americans take separation of powers far more seriously than the British ever did. Indeed, Starkey’s casual dismissal of Montesquieu as misunderstanding the British constitution was somewhat flippant, but it contained a fundamental insight into just why the American Revolution had to be fought.

Both sides, you see, believed they were preserving the English constitution. Equally, both sides cannot have been entirely mistaken. The premise of this talk, therefore, is to trace the different aspects of the same constitutional inheritance that each side not just championed, but subsequently built upon, and in both cases very successfully, at least until recently (in constitutional terms.) 

I shall trace four constitutional moments – the settlement after the Glorious Revolution in 1688, the divergence between the two traditions created by the American Revolution, the synthesis of the two traditions in Canada and Australia, and finally Britain’s most recent constitutional upheaval at the turn of the Millennium – and why that has led to 7 prime ministers in 10 years and the common accusation that Britain has become ungovernable.

Let us begin with the Glorious Revolution, that bloodless coup that finally settled the disputes between King and Parliament that had been going since the Tudors first tried to create a highly centralized executive state in the 16^th century. The succeeding dynasty, the Stuarts, had tried to replicate continental absolutism of the style of the Sun King, with the monarchy asserting powers of royal prerogative, maintaining standing armies, arbitrary taxation and government by decree. I am of course cutting a very long story short here, but suffice it to say that the various acts of settlement surrounding the revolution that put a stop to all of that continental nonsense codified the English constitution in a way it had not been before.

Michael Barone calls the Glorious Revolution “our first revolution” because he believes in many ways the American Revolution was a re-run of it:  a conservative revolution against arbitrary power that established the constitutional principles later invoked and radicalized by the American Founders. The American Revolution was not a rejection of the British constitutional tradition so much as an attempt to vindicate that tradition against a Britain that Americans believed had abandoned it. But I’m getting ahead of myself. We should look at what the Glorious Revolution did and how the constitution and government worked over the next century or so.

Far from separating powers, the Glorious Revolution fused them. The supreme institution was to be King-in-Parliament. Royal prerogative was subsumed within the law. Parliamentary consent was required for taxation. The judiciary was to be independent of the executive, to be sure, but remained subordinate to the law enacted by Parliament. There were to be regular elections to Parliament, but the key to the Glorious Revolution is not that it instituted democracy – far from it – but that it replaced arbitrary government with the Rule of Law.

To help place the traditions in context, we should look at what the British constitution looked like between the two revolutions and how the system operated. The creation of the party system, the rise of cabinet government, and the streamlining of property rights were all features of this period.

The first thing to understand is that Parliament’s growing authority was closely linked to Britain’s growing prosperity. Historians and economists have long debated the causes of Britain’s economic success, but there is broad agreement that the settlement after 1688 strengthened property rights and increased confidence that wealth could be accumulated, invested, and transmitted without arbitrary confiscation. Parliament increasingly became not merely a legislature but the institutional guardian of commercial society.

This point is sometimes missed because modern discussions of Parliament focus almost exclusively on politics. Eighteenth-century observers often viewed Parliament quite differently. Parliament secured public credit. Parliament enforced contracts. Parliament reformed property law. Parliament made possible the financial revolution that allowed Britain to borrow at lower rates than its rivals and thereby sustain both commerce and war on a scale unprecedented in European history.

The recent scholarship on property rights has emphasized that Parliament gradually dismantled many of the feudal and corporate restrictions that had constrained economic activity. This was not done according to any grand plan. Rather, Parliament became the venue through which countless local and national reforms were pursued. The result was an increasingly flexible economy underpinned by increasingly secure property rights.

This brings us to an important thinker who is too often omitted from discussions of constitutional development: the Scottish Enlightenment scholar John Millar.

Millar asked a question that would become central to the constitutional history of the English-speaking world. How do constitutions actually develop? We have all studied Locke, who explains the philosophical legitimacy behind constitutions. Millar, by contrast, concluded that constitutions derive their character from history.

In his Historical View of the English Government, Millar argued that constitutional arrangements evolved in response to changes in society itself. As commerce expanded, as property ownership changed, as military organization evolved, political institutions evolved alongside them. Constitutional development was not the product of abstract design but of historical experience.

This insight would prove enormously influential. It anticipated much of Burke’s constitutional thinking. It foreshadowed the historical jurisprudence of the nineteenth century. It even points forward to Oakeshott’s skepticism of rationalist politics. Most importantly for our purposes, it helps explain the divergence that would emerge after 1776.

For Millar, constitutions grow. For Madison, constitutions can be designed. That distinction lies at the heart of everything that follows.

An example of the way the British constitution evolved during this period was the emergence of cabinet government and political parties. Neither was contemplated in any systematic way by the constitutional settlement of 1688.

The early eighteenth century still operated largely through personal influence and shifting factions. Yet the practical demands of governing a growing commercial and imperial state gradually produced more stable political groupings. Ministries increasingly depended upon support in the House of Commons. The Hanoverian succession accelerated this trend, as monarchs less familiar with British politics delegated more responsibility to ministers.

The office of Prime Minister, indeed, emerged almost accidentally. No statute created it. No constitutional convention formally established it. Yet figures such as Sir Robert Walpole increasingly coordinated government business and managed parliamentary support. This was constitutional evolution in its purest form.

The American Founders would later create an elected executive branch and define its powers in writing. Britain simply evolved one.

By the middle of the eighteenth century the British constitution therefore rested upon several interlocking principles.

The Crown remained important.

The Lords remained powerful.

The Commons possessed increasing authority.

The courts enjoyed growing independence.

Cabinet government was emerging.

Party politics was developing.

And Parliament increasingly viewed itself as the supreme constitutional authority within the empire.

It was precisely that final assumption that brought Britain into conflict with America. The Americans did not initially dispute the authority of Parliament in Britain. What they disputed was Parliament’s authority over them.

This is where Michael Barone’s characterization of the American Revolution as a replay of 1688 becomes particularly illuminating.

The American colonists regarded themselves as defending the constitutional liberties of Englishmen, as remembered from 1688. They did not begin by demanding independence. They began by demanding recognition of what they believed to be their constitutional rights.

The constitutional disagreement turned on a question that sounds technical but proved revolutionary. Could Parliament legislate for people who were not represented within it?

To modern ears the answer may seem straightforward. To eighteenth-century Britons it was anything but. The British answer rested on the doctrine of virtual representation. Members of Parliament represented the interests of the nation as a whole, not merely the electors who chose them. Since many Britons themselves lacked the vote, the colonists were not uniquely disadvantaged.

I should note that this response to the First Continental Congress was by no means universally appreciated in Britain. Pitt the Elder called it “the most contemptible idea that ever entered into the head of a man; it does not deserve serious refutation.”

The Americans also rejected this argument. They believed that taxation and legislation required actual political representation. More fundamentally, they believed that Parliament had transformed itself from the guardian of liberty into an instrument of arbitrary power.

Notice the constitutional language.

The dispute was not initially framed in terms of nationalism or a right to independence. It was framed in terms of constitutionalism. Independence became the way to secure that view of the constitution.

The Americans increasingly spoke the language of 1688 against Britain itself. It was as if, in the years of salutary neglect of the colonies, Britain and American views of the constitution had diverged as much as the dialects and accents have since. The British had evolved a sophisticated system of governance based around the Rule of Law as dictated by Parliament. America, by contrast, was focused on the Glorious Revolution view of ancient rights. Parliament’s attempts to transfer this system to the colonies felt, in the words of Clemson’s Brad Thompson, like the imposition of a British “deep state” into the colonies.

This explains why the Declaration of Independence reads less like a nationalist manifesto than an indictment of constitutional abuses. The Americans were not rejecting the English constitutional tradition; they were claiming to be its true heirs. The British, on the other hand, viewed the efforts of Parliament to regulate the American economy and get the colonists to pay their fair share in terms of tax as the legitimate imposition of the rule of law. The two sides were speaking different dialects of the same constitutional language.

Yet once independence was achieved, the constitutional paths diverged dramatically. The Americans concluded that the British constitution had failed because power had become too concentrated. Parliament and executive had fused. Patronage had overwhelmed independence. Constitutional safeguards had proved insufficient.

The American solution was unprecedented in the modern world. They transformed constitutional principles into constitutional architecture, so what had previously been conventions became written rules and what had previously been political understandings became formal legal arrangements.

The Constitution of 1787 established a written framework of separated powers, checks and balances, federalism, judicial review, bicameralism, and a separately elected executive. The Founders did not trust political actors to restrain themselves. They sought to create institutions that would restrain one another.

James Madison’s constitutional vision was fundamentally architectural. Ambition would counteract ambition, faction would counteract faction. Liberty would be protected through the distribution of power. This was a profound innovation.

And it helps explain David Starkey’s observation.

Americans came to treat separation of powers as one of the central principles of constitutional liberty. The British never did. Indeed, Britain moved in precisely the opposite direction. Rather than separating powers, Britain continued to fuse them.

The intellectual figure who best captures this development is Edmund Burke. Burke understood the constitution as an inheritance rather than a blueprint. Institutions survived not because they were perfectly designed but because they adapted successfully to changing circumstances.

His famous observation remains one of the wisest constitutional insights ever written:

“A state without the means of some change is without the means of its conservation.”

That principle guided British constitutional development throughout the nineteenth century. Faced with the loss of America and the constitutional problems that had revealed, Britain modified its institutions rather than redesigning them. The result was the gradual triumph of cabinet government. 

Burkean reforms happened throughout the 19^th Century. The Great Reform Act and other reforms blunted the demands of the Chartist movement for a written constitution. Catholic emancipation and the Jewish Relief Act fundamentally altered the relationship between church and state without the radical solution of disestablishment.

Meanwhile, political authority moved from the weakened Crown to Cabinet, from Cabinet to Prime Minister, and increasingly through political parties commanding majorities in the House of Commons, their legitimacy increased after the Great Reform Act. 

No thinker described this transformation more clearly than Walter Bagehot, whose treatment called simply The English Constitution remains perhaps the greatest work ever written on the British constitutional system.

His most famous observation is worth quoting because it encapsulates the constitutional divergence from America:

“The efficient secret of the English Constitution may be described as the close union, the nearly complete fusion, of the executive and legislative powers.”

How different this is from Madison!

For Bagehot, fusion produced accountability. Governments could govern. Voters could identify who was responsible. Parliamentary confidence provided legitimacy and the constitution was expressed through the rule of law – and everything else was subservient to that. Thus judicial review was impertinent, checks and balances were subsumed within the Parliamentary process, and so on.

This was very different to the American system. The Americans sought liberty through institutional rivalry. The British increasingly sought liberty through responsible government. The Government was responsible to the House of Commons (no majority, no government), which was in turn responsible to the electorate.

This distinction was later codified by A. V. Dicey. Dicey’s constitutional framework rested upon two principles: parliamentary sovereignty and the rule of law.

Parliament could make or unmake any law. Government remained subject to law administered by independent courts.

What is striking is what Dicey largely omitted. Separation of powers barely figures in his account. Indeed, when Dicey comments on Blackstone’s famous passage on the powers of the King, on which the Founders drew heavily when considering appropriate powers for the Presidency, Dicey comments “The language to this passage is impressive…It has but one fault; the statements it contains are the direct opposite of the truth.” 

By Dicey’s time in the late nineteenth century, the Royal power was almost wholly subsumed into the Cabinet and the office of Prime Minister. Britain regarded responsible government rather than institutional separation as the primary constitutional safeguard.

The constitutional divergence that had begun imperceptibly in 1688 and which continued through the eighteenth century was complete by the high Victorian era. America trusted constitutional design. Britain trusted constitutional evolution.

Yet, interestingly, another path remained available.

The most successful constitutional innovations of the nineteenth century occurred not in Britain or America but in Britain’s self-governing Dominions.

Canada and Australia faced a challenge unknown to either London or Philadelphia. They wished to preserve Westminster government while creating federal states.

The Canadian founders consciously studied both constitutional traditions. They admired American federalism but distrusted American presidentialism. They wanted responsible government without legislative deadlock.

The result was a constitutional synthesis.

Canada adopted a written constitution, federalism, and judicial review while preserving cabinet government, ministerial responsibility, and the Crown.

Australia followed a similar path a generation later.

Australian delegates openly debated British, Canadian, American, and even Swiss constitutional arrangements. Their resulting constitution has often been described as “Washminster” – a fusion of Washington and Westminster. The description is apt.

Australia borrowed federalism, a powerful Senate, and constitutional entrenchment from America. It borrowed cabinet government, responsible government, and constitutional monarchy from Britain. Indeed, my friend the Anglo-Australian commentator Helen Dale calls Australia a “crowned Republic” and frequently draws attention to its preference for majoritarian democracy over codified rights.

In many respects, by reconciling Burke and Madison, Canada and Australia represent the most sophisticated constitutional synthesis produced by the English-speaking world. They combined constitutional design with constitutional evolution.

Meanwhile Britain continued evolving.

The twentieth century witnessed the high-water mark of the Westminster constitution. This period is often neglected, but it is crucial. A series of reforms weakened the internal checks and balances of Parliament and fused powers even more so.

The turning point came with Lloyd George’s People’s Budget and the constitutional crisis that followed. The Liberal Lloyd George proposed to create a Prussian-style welfare state, funded by unprecedented taxes on the lands and incomes of Britain’s wealthy. The House of Lords rejected the Budget in 1909, triggering a confrontation over whether an unelected chamber could permanently obstruct the program of an elected government.

Yet despite the received wisdom that the stand-off was always going to be won by the Liberals, the nation was surprisingly closely divided. Two elections in 1910 returned hung Parliaments, and the Liberals were forced to make concessions to the Irish Home Rule party to get their budget through the commons. Ironically, it was an intervention by the King that overcame the objection of the Lords, when he promised to make hundreds of new peers to allow the government to pass their reforms. The Lords caved rather than allow that to happen. I mean, can you imagine? 

The Parliament Act of 1911 fundamentally altered the constitution. The Lords lost their veto over money bills and saw their legislative powers reduced to delay.

The Parliament Act of 1949 reduced those powers further. It cut the Lords’ ability to delay most public bills from two years to one. Building on the 1911 Act, it confirmed the constitutional supremacy of the House of Commons and accelerated the transformation of the Lords from a co-equal legislative chamber into a revising and scrutinizing body with only a suspensive veto.

The significance of these measures cannot be overstated. The eighteenth-century constitution had rested on a balance among Crown, Lords, and Commons, echoing the ideal constitution of the ancient historian Polybius, who praised the Roman constitution for mixing monarchy, aristocracy, and democracy. 

By the middle of the twentieth century two of those three institutions had largely ceased to exercise independent political power. The Crown reigned but did not govern; what powers that remained exclusively to it were exercised in practice by the Prime Minister. The Lords revised but did not rule. The effective constitution became Cabinet, Commons majority, and Prime Minister.

At almost exactly the same moment as the Parliament Act, the United States was transforming its own upper chamber. The Seventeenth Amendment provided for the direct election of Senators.

This produced one of the most fascinating constitutional crossings in modern history. Britain preserved its upper chamber while reducing its authority. America enhanced its upper chamber’s authority while changing its representative character.

The Lords became less powerful but arguably more distinctive, while the Senate remained powerful but became less distinct from the House of Representatives than the Founders had intended.

Both countries certainly became more democratic, but both lost something of the older, Polybian constitutional principle that different institutions should represent different constitutional interests.

The mature Westminster constitution reached its zenith between roughly 1945 and 1973. Parliamentary sovereignty was largely unchallenged. Governments commanding Commons majorities enjoyed immense authority. The constitution concentrated power in a manner that would have astonished eighteenth-century observers.

Yet this very success created new tensions. The expansion of the administrative state, the growth of the welfare state, and Britain’s changing international position all placed pressure on traditional constitutional arrangements.

The final chapter of this story begins in 1973. British membership of the European Communities represented a constitutional innovation unlike anything seen since 1688.

For the first time, Parliament accepted that another legal order possessed supremacy within certain fields. Dicey’s doctrine of parliamentary sovereignty survived formally because Parliament could repeal the legislation enabling membership. Yet while membership endured, courts increasingly recognized the primacy of European law. 

In the decision, ironically enough, of the House of Lords in its judicial capacity known as Factortame in 1989, it was held that Courts had a duty to uphold European Community law over national law when the two were in conflict. The previous doctrine of “implied repeal” whereby a law was set aside in favor of a newer one when the two contradicted each other no longer held for what were in effect constitutional laws that could only be repealed expressly. 

The constitutional implications were profound. Britain now had constitutional statutes, and judicial review could set aside acts of Parliament.

An even more significant change concerned rights. Traditionally, British constitutionalism had not centered on rights in the American sense, but centered on liberties.

The distinction is subtle but important.

The traditional British understanding held that individuals were free because government possessed limited lawful powers. Liberty emerged from institutions: Parliament, common law, juries, property rights, and due process. Rights were largely consequences of constitutional order – the Glorious Revolution Bill of Rights, after all, was an Act of Parliament. This was Dicey’s constitution.

The American tradition of course took the opposite view. Rights preceded government and Government existed to secure them.

The incorporation of the European Convention on Human Rights via the Human Rights Act by the new Blair government in 1988 introduced to Britain a constitutional vocabulary much closer to the American tradition.

Judges increasingly spoke of proportionality, balancing, and rights, while constitutional thought increasingly focused on what individuals could claim rather than merely what government could do.

This represented another genuine constitutional transformation.

It was accompanied by other Blairite constitutional innovations: devolution, the creation of the Supreme Court, referendums, and independent institutions such as the Office for Budget Responsibility, free from Ministerial or indeed Parliamentary oversight.

Power became dispersed once more. The Westminster constitution that Lloyd George had helped create was suddenly modified.

Here the work of Oxford don Vernon Bogdanor’s becomes indispensable. Bogdanor argues that Britain has become increasingly constitutional in the American sense without actually becoming American.

Parliament remains sovereign. Yet constitutional authority is now shared among courts, devolved governments, independent bodies, conventions, and democratic mandates.

Britain has not adopted a written constitution. But it no longer resembles Dicey’s world. The implications are profound.

This brings us finally to Michael Oakeshott. Oakeshott’s distinction between nomocracy and teleocracy helps explain the deeper significance of this entire story.

According to Oakeshott, there are two ways to view the point of government. A nomocratic government, from the Greek nomos, which means law or custom, sets the rules and lets people get on with things. A teleocratic government, from the Greek telos, end or purpose, has aims and purposes that it wants to achieve and will achieve these through use of state powers or instruments.

The traditional British constitution was largely nomocratic. It governed through general rules. Institutions evolved through practice. Liberty emerged through historically developed arrangements. This places Oakeshott in a line running back through Burke and Millar.

Each of them understood constitutional order as something that grows rather than something that is manufactured.

The modern British constitution, however, is largely teleocratic, with several contradictions. It exists to secure the will of the people as expressed in regular elections, while at the same time securing rights that increasingly override the will of the people. Thus, the right not to be offended has been held to override the right to free expression. The right to remain in Britain once admitted so as to secure a family life has overridden the expressed desire of the electorate to curb immigration and so forth. Electorates vote for change, expecting it to happen, only to find the new system stops the change from happening. The old view of the constitution and the new view are in direct conflict.

My friend and colleague Wayne Crews once described the urge to regulate search engines as “All results must come first.” Britain appears to have created a constitutional version of this, with all constitutional ends equally important in theory, but in practice that is proving impossible.

The result is that Prime Ministers cannot “deliver,” in the language of the modern politics. And thus they fail. Seven Prime Ministers in ten years is evidence of that.

As Burke noted, “To innovate is not to reform.” It may have been that the British Constitution of the late twentieth century required reform. It is not clear that the Blairite innovations did what was needed. But what is for sure is that membership of the European Union and the Blairite Reforms combined fundamentally altered the British Constitution in a way that was not wholly appreciated by either the electorates or the governments of the time. 

Indeed, despite Brexit, I do not think the British electorate fully understands just how different the current British constitution is from the constitution as understood from the American Revolution to the 1980s. It is, however, fascinating that American concepts such as separation of powers, judicial review, and independent agencies now form essential parts of British constitutional design.

And that brings us back to where we began. In many ways, the American Revolution did not create one constitutional future. It created several.

Britain continued to trust constitutional evolution. America increasingly trusted constitutional architecture. Canada and Australia sought to combine the two. And, as if to come full circle, Britain’s constitutional evolution now trusts constitutional design.

The history of the English-speaking world since 1776 is therefore not a story of constitutional separation but of constitutional conversation. Locke and Madison remind us that power must be constrained. Millar, Burke, Bagehot, Dicey, and Oakeshott remind us that institutions derive much of their legitimacy from history and experience. The continuing challenge for every constitutional order is finding the proper balance between design and evolution, between liberty and legitimate authority, between permanence and adaptation.

That challenge remains as pressing today as it was in 1688 and 1776. Indeed, one reason constitutional questions seem so unsettled in Britain at present is that the country is once again asking where constitutional legitimacy ultimately resides: in Parliament, in courts, in rights, in referendums, in devolved governments, or in the electorate itself. The answer remains uncertain.

What is certain is that the constitutional traditions born of the two revolutions continue to shape the political life of the English-speaking world. The Revolution did not end a constitutional story. It divided one story into several, each illuminating a different understanding of how a free people should govern itself.